The United States' Withdrawal from International Court of Justice Jurisdiction in Consular Cases: Reasons and Consequences

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INTRODUCTION

In 2005, the United States withdrew from the Optional Protocol to the Vienna Convention on Consular Relations Concerning the Compulsory Settlement of Disputes. The Optional Protocol provides for jurisdiction in the International Court of Justice (ICJ) when any state party to the Vienna Convention on Consular Relations (VCCR) (1) seeks to sue another state party for violating it. (2)

Controversy over VCCR Article 36, which allows a foreign national under arrest to contact a home state consul, prompted the withdrawal. The United States had just lost two cases in the ICJ arising out of situations in which police in the United States had failed to observe consular access for arrested foreign nationals. The withdrawal was a response to those ICJ decisions.

The withdrawal raised questions about the intent of the United States to comply with its obligations under the VCCR. For a number of years, the United States has taken a view of the consequences of non-compliance with VCCR Article 36 that is at odds with the views of other states party to the VCCR. The United States reads VCCR Article 36 as affording less protection for a foreign national whose consular access was not respected than do other states.

Many view the withdrawal as a significant reversal of U.S. policy regarding U.S. participation in international dispute resolution mechanisms, particularly the ICJ, since the United States was an early and strong proponent of compulsory dispute settlement for violations of the VCCR. (3)

The withdrawal limited the ability of the United States to sue other states party to the VCCR for violations of the rights of U.S. consuls and U.S. nationals. Lacking the Optional Protocol as a jurisdictional basis, the United States is not likely to establish jurisdiction over other states for violations of consular access rights or any other aspect of consular law. (4)

The withdrawal also raised legal issues, the most significant of which deals with the validity of the withdrawal. Under international law, it is unclear whether states are free to withdraw from a treaty that does not expressly provide for withdrawal in a so-called "denunciation clause." (5) The Optional Protocol contains no such clause.

At the policy level, the withdrawal fueled charges that the United States takes a unilateralist approach to international law. The United States has been at odds with other nations in recent years on issues ranging from military action to environmental protection. (6) The withdrawal from the VCCR Optional Protocol seemed to some as one more example of a go-it-alone approach by the United States.

This Article examines the reasons for the 2005 withdrawal from the VCCR Optional Protocol, why the United States deemed it appropriate to change course from its earlier position, what the withdrawal means for U.S. compliance with consular access obligations, whether the withdrawal is legally valid, and what it may mean for U.S. compliance with international law and participation in international dispute settlement processes.

I. THE U.S. WITHDRAWAL FROM THE VCCR OPTIONAL PROTOCOL

States that are party to the VCCR have the choice of adhering to the Optional Protocol. (7) By becoming a party to the Optional Protocol, a state that is already a party to the VCCR gains jurisdiction in the ICJ to sue any other state party for any violation of the VCCR, but at the same time, such a state opens itself up to being sued by other states party to the VCCR for any violation of the VCCR. (8) The operative provision of the Optional Protocol reads:

Disputes arising out of the interpretation or application of the
[Vienna] Convention [on Consular Relations] shall lie within the
compulsory jurisdiction of the International Court of Justice and
may accordingly be brought before the Court by an application
made by any party to the dispute being a Party to the present
Protocol. …